State v. Jackson

• Decision Date: 25 October 1938
• Docket Number: 8729.
• Parties: STATE v. JACKSON.
• Court: West Virginia Supreme Court

199 S.E. 876

120 W.Va. 521

STATE v. JACKSON.

No. 8729.

Supreme Court of Appeals of West Virginia.

October 25, 1938

Submitted September 27, 1938.

Syllabus by the Court.

1. In the enactment of a statute the Legislature must be presumed to have acted with full knowledge of the provisions of all prior statutes dealing with the same subject matter.

2. A general repealer clause in a statute is only declaratory of what would be the legal effect of the statute without the repealing provision. Its insertion in a statute, however, indicates an assumption on the part of the Legislature that the statute to some extent is repugnant to a prior enactment.

3. It is well established that in the interpretation of a statute significance and effect shall be accorded, if possible, to every section, clause, word or part of the act.

4. Code 1931, 11-12-1(h) and 11-12-40, to the extent that it requires a license fee of persons engaged in the real estate business is repealed by Chapter 127, Acts West Virginia Legislature 1937.

Error to Circuit Court, Wood County.

Charles F. Jackson was charged with unlawfully practicing the business of real estate agent and broker without a license. To review a judgment dismissing the warrant, the State brings error.

Judgment affirmed.

KENNA J., dissenting.

Clarence W. Meadows, Atty. Gen., and Kenneth E. Hines, Asst. Atty Gen., for the State.

Hoff & Moore, of Parkersburg, for defendant in error.

RILEY Judge.

A warrant, issued by a justice of the peace, charged that the defendant "did, on the 1st day of October, 1937, in said county, unlawfully practice the business of real estate agent and broker without having obtained a State license therefor as required by Section 1, Article 12, Chapter 11, of the Official Code of West Virginia, and against the peace and dignity of the State." The State of West Virginia prosecutes this writ of error to a judgment of the circuit court of Wood County, dismissing the warrant upon demurrer.

As indicated by a written opinion, made a part of the record, the trial court's action was based upon the theory that the foregoing section of Code 1931 had been repealed by Chapter 127, Acts of the Legislature, 1937. This act, as indicated by its title, has for its purpose the creation of the West Virginia Real Estate Commission; the regulation of the real estate business; the requiring of a license and payment of a fee to engage in such business; and the providing of penalties for the violation of the provisions of the act. The act itself establishes a commission known as The West Virginia Real Estate Commission; makes it unlawful for any person to act as a real estate broker or salesman, or to engage in the real estate business, without first securing a license from the commission; and provides that if such broker's place of business is located in a city with a population of 7,500 or more, his original fee and annual renewal fee shall be $50 and that of his salesman, $10; and, if in a city or town with a population less than 7,500, $25 and $5, respectively. The act, in section 12 thereof, further provides: "All acts or part of acts, including licensing acts, inconsistent with this act are hereby repealed. But nothing herein contained shall affect any right that municipalities may now or hereafter have to tax, license, or regulate persons engaged in the real estate business." (Italics supplied.)

The statute under which the warrant was issued, Code 1931, 11-12-1, provides in part: "No person without a state license therefor, shall * * * (h) Practice the business of real estate agent, stock broker, or other broker, by buying or selling for others, stock, securities, or any other property for a commission or reward; * * *." Code 1931, 11-12-40 provides: "On every license to practice the business of real estate agent or real estate broker, fifty dollars * * *."

The question presented is, does the Act of 1937 repeal the statute (Code 1931, 11-12-1(h), 11-12-40)? If so, the judgment of the trial court must be affirmed.

It is most important to note that Code 1931, 11-12-1(h), was the only statute requiring a license for the privilege of engaging in the real estate business at the time of the enactment of Chapter 127 of the Acts of 1937. The former statute is contained in the Official Code of 1931 in chapter 11 and article 12 thereof designated respectively "Taxation" and "License Taxes." In the passage of the 1937 act, the Legislature must be presumed to have acted with full knowledge that Code 1931, 11-12-1 et seq., was the only licensing act dealing with persons engaged in the real estate business then on the statute books. "Laws are presumed to be passed with deliberation, and with a full knowledge of all existing ones on the same subject." 1 Lewis' Sutherland Statutory Construction, 2d Ed., p. 459, sec. 246; State v. Snyder, 64 W.Va. 659, 63 S.E. 385; Reeves v. Ross, 62 W.Va. 7, 57 S.E. 284; 59 C.J. 1038.

It is contended by the State that the earlier act was not repealed by the later. In support thereof it is submitted (1) that the former is strictly a revenue measure under power to tax, and the latter a regulatory measure under the police power, and therefore not ipso facto repugnant; (2) that a strong presumption exists against a legislative intent to repeal an earlier act dealing with a different subject matter, where the later does not expressly refer to the former; and (3) that repeal by implication is not favored, and the presumption is always against the intent to repeal where express terms are not used in the later statute with reference to the former.

Were we dealing with the usual repealer clause, the foregoing position would no doubt be tenable, for ordinarily such a clause is only declaratory of what would be the legal effect of the act without the provision. In other words, its insertion actually adds nothing of virtue or...